TMI Blog2015 (6) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... xcisable goods which he knew or had reason to belief were liable for confiscation and similarly he has not acquired possession of or has sold or was involved in dealing with any imported goods which he knew or had reason to belief were liable for confiscation. In view of this we hold that the provisions of Rule 209A of Central Excise Rules 1944/ Rule 26 of the Central Excise Rule 2001/2002 are not attracted, and hence, penalty imposed on him is not sustainable. For the same reason, penalty imposed on him under section 112(b) of the Customs Act, 1962 is also not sustainable. Penalty on other appellants is also set aside - Decided in favour of assessee. - Excise Appeal No. E/1110 & 1148-1150/2006-Ex [DB] - - - Dated:- 12-2-2015 - Rakesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner, these appeals have been filed. 2. Heard both the sides. 3. While Shri SD Gaur, consultant, appeared, for Shri V. K. Gupta in respect of Shri Pramod Nigam, there is a letter dated 09.11.2014 requesting for decision of his appeal on merits as he is not in a position to attend the hearing and is also not in a position to appoint any authorized representative. None appeared for the other appellants, Shri Manoj Gupta and Shri Abbas Ali. 4. Shri S D Gaur, Consultant, appearing for Shri VK Gupta, pleaded that the appellant was only an employee - Manager (finance) of M/s Margra Industries Ltd., that he is not involved in any of the activities specified in Rule 209A of Central Excise Rule 1944/ Rule 26 Central Excise Rule 2001/2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activities that were going on within M/s Margra Industries Ltd. and M/s Marble Art Ltd., and that he knew very well that the instructions regarding adjustments of cash were not within the ambit of law, but he still acted as a via media for passing on of these instructions, which he knew were wrong, to the subordinate staff. In our view, the role of Shri V K Gupta as described in para 4.301 and 4.302 of the impugned order is not covered by the activities enumerated in rule 209A of Central Excise Rule 1944/ Rule 26 of the Central Excise Rule 2001/02 for which penalty is attracted and similarly the Role of Shri VK Gupta is also not covered by the activities enumerated in section 112(b) of the Customs Act 1962 which would attract penalty. Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d without payment of duty. In our view, for the above activities, as discussed above, neither the provisions of section 112(b) of Customs Act 1962 would be attracted nor the provisions of Rule 209A of Central Excise Rule 1944/ Rule 26 of the Central Excise 2001/2002 would be attracted, and hence, penalty imposed on these employees under Rule 209A of Central Excise Rule 1944/ Rule 26 of the Central Excise Rule 201/2002 and under section 112(b) of Customs Act 1962 are not sustainable. 9. Moreover, the appellants in these appeals are employees of M/s Margra Industries Ltd. who were acting on the instructions of the management and for this reason also, in our view, the penalty under section 112(b) of Customs Act 1962 and Rule 209A of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X
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